Джанадилов Олжас Муратович,
Докторант PhD 2 года обучения
По специальности «Юриспруденция»
Академии правоохранительных органов при
Генеральной прокуратуре Республики Казахстан
The
main directions of development of the institution of responsibility for the
commission of a criminal offense in the field of information in the Republic of
Kazakhstan
Annotation. During the period of the technical revolution that
took place over the last decades, due to the expansion of computer
technologies, was formed a kind of unlawful direction, which is
expressed in the commission of criminal offenses with the help of computer
technologies.
Key words: institute, responsibility, criminal offense, informatization,
development, formation, Kazakhstan.
A characteristic feature
of criminal offenses in the field of information, distinguishing them from all
other criminally punishable acts, is that they possess very high latency and an
excessively large amount of damage.
This attracted the need
for legal regulation of the sphere of informatization and active development of
the institution of responsibility for committing unlawful acts in the field of
informatization.
If we focus on the
establishment of the research institute in the Republic of Kazakhstan, it was
developed with the adoption of the Criminal Code of the Republic of Kazakhstan on July 16, 1997, No. 167
(ceased), which contained only one rule providing for responsibility for
unauthorized access to computer information , creation, use and distribution of
malicious programs for computers.
Later, in the process for
committing criminal offenses in the field of informatization, the adoption of
the new Criminal Code of the Republic of Kazakhstan played a big role, in which
there was a full chapter 7 "Criminal offenses in the field of information
and communication" as opposed to the old Criminal Code.
Revealing the history of
formation of responsibility for criminal offenses in the field of information,
it is important to note that this concept came the introduction of the new Criminal
Code of the Republic of Kazakhstan and the Law "On information". Prior
to the enactment of these legal acts, it was widely used, and in foreign
countries it is still being used, the concept of "computer
crimes". In this regard, we can note a direct connection between the
concepts of "criminal offense in the field of informatization" and
"computer crime". Accordingly, it is important to consider the
history and theory of the development of responsibility for the commission of criminal
offenses in the field of informatization.
On June 26, 1998, for the
first time in the history of independent Kazakhstan, was adopted the Law of the
Republic of Kazakhstan "On National Security"(ceased), in which information
security was viewed as one of the elements of national security and was defined
as a state of security of state information resources, interests of the society
in the information sphere.
In the same year, was approved the Resolution of the
Government of the Republic of Kazakhstan No. 1384 on December 31, 1998 "On
Coordination of Work on Forming and Developing the National Information
Infrastructure, Informatization Processes and Ensuring Information
Security". This normative legal act was aimed at elaborating the main
provisions of state policy, including the development of plans and programs for
informatization of state institutions, implemented at the expense of public
funds, the creation of a regulatory legal framework that allows to work in
electronic data formats.
In this text, it should also be noted the Decree of the Government of the
Republic of Kazakhstan No. 1537 on October 7, 1999 "On the National Action
Plan to address the problem of the conformity of information technologies,
caused by the" 2000 problem "and has become a kind of" first
steps "in trying to develop a concept and algorithm approaches to the
analysis of vulnerabilities, and to reduce the risks of activation of
undeclared capabilities in software, and the associated risks of failure of
critical information objects.
On March 15, 1999, came into force the Law of the Republic of Kazakhstan
No. 349-1 "On State Secrets", which was subsequently changed, laying
the foundation for ensuring the protection of state secrets, including through
global information and communication networks.
Further,
namely on October 23, 2001, was signed decision of the Republic of
Kazakhstan № 1351 "On Approval of the Rules of the State Register of
Information and Telecommunication Resources", through which the state
begins to centralize the information and communication resources of the
country, introduces the principles of mandatory justification for restricting
access to information resources.
All adopted normative acts became the foundation of a special law - Law No.
412-II "On Informatization" adopted on May 8, 2003 and developed in
accordance with the State Program for the Formation and Development of the
National Information Infrastructure of the Republic of Kazakhstan for
2001-2003, approved by the Decree of the President of the Republic of
Kazakhstan from March 16, 2001 № 573.
Already in the first edition of the Law of the
Republic of Kazakhstan "On Informatization", taking into account the
need for the formation of market institutions for managing the information
sphere, were determined the main directions of the state information security
policy in the field of information. The legal status and competence of the
authorized state body (on that moment, the Agency for Informatization and
Communication), were determined the procedure for the formation and use of
information resources and systems. It is notable that one of the powers of the authorized body in the field
of information, not found in subsequent editions of the Law "On
Informatization" is the management of information resources and systems in
emergency situations of natural and man-made nature, terrorist acts (Article
7).
A special emphasis in the law was made on the
definition of the status, types of the order of formation and use of
information resources. Through this normative legal act, conceptual legal bases
were created to expand the areas of information technologies, information
resources, the introduction of a market approach to the formation and use of
information resources, including in public administration.
Along with an understanding of the need for free
development of the information services market and the use of information
resources, the principle of ensuring the interests of national security in the
field of information was proclaimed a key principle, and one of the directions
of state regulation in the field of information is the organization of
protection of state information resources and information systems [1, p.88 ].
However, the establishment of the institution of
responsibility in the field of informatization has faced a number of problems,
concerning the definitions of certain terms. So, at the moment there is no
single definition of the term "computer crimes". This is complicated by the fact that
scientists in the field under study differently approach to the disclosure of
these issues, but they are all unanimous in their opinion about the need to
identify offenses in the field of informatization as an independent criminal
legal category.
The term "computer crime" was widely used
by law
enforcement agencies and
scientists, although initially there were no criminological and legal grounds
for this.
The group of experts of
the Organization for Economic Co-operation and Development (OECD) in 1986 gave
a criminological definition of the investigated unlawful act, which meant
"... any unlawful, unethical or unauthorized conduct affecting automated
processing and / or transfer of data" [2, p.9] .
However, there are no
uniform approaches to the definition of the concept and types of criminal
offenses in the field of information in the world, which is objectively
conditioned by the complexity of combining the concept of "computer
information" with traditional criminal law institutions. This in turn, has a negative
impact on their statistical recording and analysis of the status and trends of
development of criminal offenses of this category.
The beginning of the
history of criminal infringements in the field of information in the territory
of the former USSR is considered to be a similar crime that occurred in Vilnius
in 1979. The amount of damage inflicted amounted to a huge for those times the
amount of 78,584 rubles. Information about this crime was entered in the
international registry of computer thefts [3, p.126].
In the following years,
not only the activity of criminals in this sphere increased substantially, but
also the scale of the damage caused by them. The appearance in the
mid-70s of the market for compact personal computers of the 5th generation
largely contributed to this, which turned the computer into an instrument accessible
to a large number of users who had access to information flows. Unfortunately,
this is certainly the great achievement of the scientific and technological
revolution, which served as the foundation for a number of achievements in
various areas of human activity, also had a negative component, which found
expression in the growth of criminal activity in the field of computer
information.
Analysis of the current
development of the situation allows us to predict the growth of organized crime
connected with the use of electronic means, one of which is a computer. World financial systems
will increasingly rely on data processing with the help of computers and new
information technologies and, as technology advances, an increasing number of
countries will connect to existing and newly formed electronic computer
information networks, which currently rely on the entire world economy, which
will inevitably lead to an even greater desire for enrichment by criminal
groups and communities. This dangerous trend we are observing at the present
time.
The increase in the
number of these criminal offenses in the field of informatization and the
extent of damage caused by them has become possible due to the high level of
computer competence of the persons who commit them.
The sphere of information
technologies became more attractive, different, including criminal structures.
Modern destructive
elements of our society are taking active steps aimed at comprehensive
penetration into the economy with the aim of significantly increasing their
illegal incomes.
The appearance of the
first computer viruses was another stumbling block to the development of
ensuring the invulnerability of computer systems. This is confirmed by recent
cases of active use of the virus «Wanna cry ». This cyber attack has
already been called the most ambitious in history. More than 70 countries, tens
of thousands of infected computers. The extortion virus called «Wanna cry»
spares no one. Under the impact - hospitals, railways, government agencies.
The attack in Russia was
the most massive. From the last: Russian Railways said that the virus was
trying to penetrate into their IT system, it is already localized and is trying
to destroy it. Also, attempts were made to break into the Central Bank, the
Ministry of Internal Affairs, the Ministry for Emergency Situations, and
communications companies.
The look of a virus that has paralyzed
tens of thousands of computers around the world. A clear text translated into
dozens of languages - "you only have three days to pay." A malicious
program that encrypts files requires for their unlocking, according to various
sources, 300 to 600 dollars. In doing sopk, only in cyber-currency
[4].
A computer virus was a
special program that could spontaneously join other programs (that is,
"infect" them) and launch various undesirable actions when the latter
started: corrupting files and directories, distorting the results of
calculations, clogging or erasing memory, etc. [5, p.62]
However, despite the
considerable efforts made by government agencies, the public of different
countries, and also by software companies of various and including antivirus
software, the problem of computer viruses is clearly far from being resolved.
Considering all the
above, we come to the conclusion that practically all the achievements of
humanity, one way or another, attract the attention of destructive elements of
society. This is confirmed by the fact
that criminal offenses in the field of informatization have already acquired
quite tangible forms. Accordingly, it is time to take
maximum efforts to develop an effective legal framework aimed at preventing and
combating criminal infringements in the field of informatization, in particular
by strengthening and the inevitability of responsibility for the commission of
these acts.
Summing up, we can
conclude that since the acquisition of independence, the Republic of Kazakhstan
has gone a long way in establishing the institution of responsibility for
committing offenses in the field of information, starting with the introduction
of just one rule and continuing with the adoption of an independent law and the
improvement of existing legislation in this area.
This, in turn, is of
great importance in the life of modern society, acting as the first and extremely
important frontier for the protection of its interests in the information
sphere, where it recognizes wrongfulness and denial of such extremely negative
phenomena as criminal infringements in the field of information.
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